ABSTRACT... i DISCLAIMER... ii ACKNOWLEDGMENTS...iii LIST OF TABLES AND MAPS... vi ABBREVIATIONS AND ACRONYMS... vii INTRODUCTION...

Transcrição

1 MARITIME BOUNDARIES DELIMITATION, MANAGEMENT AND DISPUTE RESOLUTION DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES WITH NEIGHBOURING STATES (INCLUDING THE EXTENDED CONTINENTAL SHELF) AND THE MANAGEMENT OF OCEAN ISSUES ELÍSIO BENEDITO JAMINE The United Nations and Nippon Fellowship Programme Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs United Nations, NY, USA

2 ABSTRACT The Law of the Sea Convention (LOSC) establishes the jurisdictional regimes under which a coastal State can claim, manage, and utilize its ocean resources. With an increasing recognition of the need to administer competing resource use interests in the ocean and seabed, and the requirement to ensure sustainable exploitation of these resources, Mozambique has an ambitious program for the establishment of its maritime boundaries, including the outer limits of its extended Continental Shelf (CS). Mozambique faces the problem of lack of delimitation and negotiation of the maritime boundaries, connected to the lack of a comprehensive framework for management of maritime issues, lack of appropriate technology to quantify, qualify, and exploit the resources that lie in the sea, and lack of means by which to exercise and guarantee its sovereign rights. These problems obstruct the Mozambican State, as a sovereign subject of international law of the sea (LOS), from being able to take independent initiatives in pursuit of her internal and external policy objectives. The lack of delimitation of the maritime boundaries appears as a constraint for the State. Mozambique is not in a position to exercising all her rights and duties in accordance with LOSC with respect to jurisdiction and the exercise of sovereignty in these spaces. Moreover, delimiting boundaries alone is not sufficient to solve sovereignty concerns, since there is still a lack of knowledge and capacity to carry out management, research, and evaluation of resources; for example: fish stocks within the Exclusive Economic Zone (EEZ). Hence the question: what costs and benefits would result from the delimitation of Mozambique s maritime boundaries? It is in the context of LOSC that this study intends to understand the Mozambican situation, and discuss the problems involved in the delimitation and negotiation of Mozambique maritime boundaries and the management of ocean issues. This research presents and analyzes options for delimitation, negotiation of maritime boundaries, and management of maritime issues and boundaries. i

3 DISCLAIMER The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations, the Nippon Foundation of Japan, the Center for Oceans Law and Policy University of Virginia School of Law, or that of the Government of Republic of Mozambique. ii

4 ACKNOWLEDGMENTS This study could not have been possible without the support of the United Nations, funding from the Nippon Foundation of Japan, and could not have been achieved without the support and assistance of individuals and institutions. For that reason, I wish to record my grateful appreciation for the assistance and guidance given to me by Professor John Norton Moore, who supervised this study and his wonderful team, namely: Professor Myron H. Nordquist (The Associate Director of the Center for Oceans Law and Policy), Ms. Donna D. Ganoe, Ms. Judy Ellis, and Ms. Kay Wood, they provided me with all the facilities necessary to complete this work. I equally thank to Ms. Sarah Johnson, Associate Director of the Graduate Studies of the University of Virginia School of Law. My thanks are also due to Mr. Robert Smith for the comments and recommendations on the draft paper of the present study. My deep gratitude also extends to the kind assistance given by the staff of the Division for Oceans Affairs and the Law of the Sea of the United Nations. A very special expression of gratitude is due to Mr. François Bailet (The Programme Advisor), who gave me support and assistance since the beginning. I m therefore especially glad to Mr. Miguel A. Chissano (President of National Institute for Maritime and Borders Affairs), Mr. Cristiano F. A. dos Santos (Director of Legal Affairs, Minister of Foreign Affairs and Cooperation), and Mr. Eugenio Muianga (Director of Sea, National Institute for Maritime and Borders Affairs) for their encouragement and unfailing assistance. An acknowledgement is also due to the National Institute for Maritime and Borders Affairs and all colleagues/friends for their cooperation and efforts in making my research phase easier and pleasant, and finally to all the people who directly and indirectly supported my research. iii

5 TABLE OF CONTENTS ABSTRACT... i DISCLAIMER... ii ACKNOWLEDGMENTS...iii LIST OF TABLES AND MAPS... vi ABBREVIATIONS AND ACRONYMS... vii INTRODUCTION... 2 PART I: DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES AND THE EXTENDED CONTINENTAL SHELF Mozambique Maritime Geographic Context Internal Jurisdiction and Legal Issues Related to Maritime Boundaries in Mozambique vs. Law of the Sea Convention The Establishment of Baselines Charts and Geographical Coordinates Delimitation of Maritime Boundaries of the Exclusive Economic Zone and Continental Shelf: Law of the Sea Convention vs. Act of Sea (4/96) Legal Principles The Delimitation Method Disputes Affecting the Process of Delimitation of Mozambique Boundaries Conflict Between France and Madagascar Conflict Between France and Comoros Delimitation of the Exclusive Economic Zone Boundary Between Mozambique and Madagascar, and the Status of French Possessions Defining the Weight of Possessions Bassas da India Boundary Between Mozambique and Comoros Boundary Between Mozambique and South Africa Tri-point Issues Delimitation of the Extended Continental Shelf Outer Continental Shelf Beyond 200 Nautical Miles The Negotiation Process and Final Agreement Principles of Negotiation Options for Strategies Delimitation Agreement Potential Disputes Settlement Scenarios Managing Maritime Boundaries PART II- MANAGEMENT OF OCEAN ISSUES IN MOZAMBIQUE Current Status of Mozambique Ocean Issues Management Coastal Management Fisheries Management Marine Environment Management iv

6 2. Exploring Integrated Management Exploring the (Sub) Regional, International and/or Global Approach (Sub) Regional Context/Approach Peace and Maritime Security International Context and Approach Mozambique Integrated Policy of the Sea Needed CONCLUSION AND RECOMENDATIONS BIBLIOGRAPHY Annex I: Act of Sea (No. 4/96) (Selected Articles from the Original Version) Annex II: Decree No. 18/2001 Establishing the National Institute for Maritime and Borders Affairs and its Statutes Annex III: Decree No. 2/2001 Establishing the Coordination Council of Sea and Boundaries Annex IV: Maritime Boundary Agreement Between Mozambique and Tanzania Annex V: Decree No Approving the Baselines of Ultramarine Provinces Annex VI: Decree-Law No. 31/76 Defining the Rights of Peoples Republic of Mozambique Annex VII: Fisheries Act (No. 3/90) (Selected Articles from the Original Version) Annex VIII: Environmental Act (No. 20/97) v

7 LIST OF TABLES AND MAPS List of Tables Table 1 - Maritime Distances Between Mozambique and Neighboring Coastal States Table 2 - Advantages and Disadvantages of Centralism and Localism in Coastal Management List of Maps 1 Map 1 - Geographic Location of Mozambique and Islands under Dispute in Mozambique Channel Map 2 - Delimited Boundary Between Mozambique and Tanzania Map 3 - Straights Baselines of Republic of Mozambique Map 4 - French Possession Juan de Nova Map 5 - French Possession Europe Island Map 6 - French Possession Bassas da India Map 7 - Potential Boundary Between Mozambique and South Africa Map 8 - Hypothetical Potential Maritime Boundaries in the Mozambique Channel Map 9 - Potential Continental Shelf Beyond 200 nm 1 The Maps presented in this study are intended for information purposes only. The Maps are not represented as an official record of the Government of Mozambique, or any other State referenced here within. vi

8 ABBREVIATIONS AND ACRONYMS CCMAF - Coordination Council of Sea and Boundaries CLC - Commission on the Limits of the Continental Shelf CONDES - National Council of Sustainable Development of Mozambique CS - Continental Self CTMF - Technical Council of Sea and Boundaries CZ - Contiguous Zone EEZ - Exclusive Economic Zone FAO - Food and Agriculture Organization HS - High Seas ICP - Informal Consultative Process on Ocean and Law of the Sea ICJ - International Court of Justice IOC - Intergovernmental Oceanographic Commission of UNESCO (IOC-UNESCO) ICZM - Integrated Coastal Zone Management IMO - International Maritime Organization INAHINA - National Institute of Hydrography and Navigation INAMAR - National Marine Institute INP - National Institute of Petroleum IOMAC - Indian Ocean Marine Affairs Cooperation IO/s - International Organization/s IR - International Relations ISBA - International Seabed Authority ITLOS - International Tribunal for the Law of the Sea Km - Kilometer LOS - Law of the Sea LOSC - United Nation Convention on the Law of the Sea-1982/Law of the Sea Convention m Meter NEMP - National Environmental Management Programme MOZAL Mozambique Aluminum MICOA - Ministry of Environmental Affairs and Coordination vii

9 MINEC - Ministry of Foreign Affairs and Cooperation N/P - Non Published NLM - National Liberation Movement; nm - nautical mile/s OAU - Organization of African Unity RA - Republic Assembly RM - Republic of Mozambique RSA - Republic of South Africa RSP - Regional Seas Programme SADC - Southern Africa Development Community SAFMAR - National Service of Administration and Maritime Control SPLOS States Parties to the Law of the Sea Convention TS - Territorial Sea UN - United Nations UNCED - United Nations Conference on Environmental Development UNDESA - United Nations Department of International Economic and Social Affairs UNEP - United Nations Environment Program URT - United Republic of Tanzania USA - United States of America viii

10 INTRODUCTION INTRODUCTION Maritime delimitation remains an important topic: in boundary-making, sensitive questions of State sovereignty, sovereign rights, jurisdiction and title to valuable natural resources are all put into question 2. Nowadays, the potential political and security risks of boundary disputes are high, and unresolved maritime boundaries between States may easily affect bilateral relations or even international peace and security. Such disputes may also hamper economic activities, such as exploitation of fishing sites, due to fear of action by the other States. Furthermore, unresolved maritime boundaries may also cause disputes over certain areas of jurisdiction between States if oil and/or gas discoveries are made in overlapping claimed areas. In the case of Mozambique, apart from the agreed maritime boundary with Tanzania, all other maritime boundaries with neighboring States (Comoros, Madagascar, French Possessions [subject of dispute between France/Madagascar and Comoros/France], and South Africa) are still pending. The focus on Mozambique maritime boundary delimitation and management of ocean issues was motivated by many factors: prominent is Mozambique s intention to delimit its maritime boundaries, and the delay that the France/Comoros Archipelago and France/Madagascar disputes can cause in the delimitation negotiation process. While this conflict remains unresolved, Mozambique s maritime boundary with Madagascar remains undetermined. Furthermore, studying the maritime boundaries of Mozambique is not a easy task, given that there is virtually no data structured in a comprehensive manner, and that no one has ever researched or written about this matter in Mozambique. Thus, a number of questions need to be answered, largely because theoretical and practical analyses or studies have been few and far between. Historically, customary international law has established the law that governed the ocean, as well as maritime zone delimitation. The first sporadic attempts to codify the LOS were undertaken by the League of Nations. Their 1930 conference convened in the Hague Haia attempted to deal with the Territorial Sea (TS), but an agreement could not be reached. 2 David H. Anderson, Judge of International Tribunal for the Law of the Sea; See: Foreword in Atunes, Nuno Marques (2003), Toward The Conceptualization of Maritime Delimitation: Legal and Technical Aspects of a Political Process, Martinus Nijhoff Publishers, Leiden/Boston. 2

11 INTRODUCTION Following the Hague Haia Conference, there were three decisive moments in the process of codification of the LOS: The First, Second, and Third United Nations Conferences on the Law of the Sea (UNCLOS I, II and III: 1958, 1960 and , respectively). UNCLOS I, which was held in Geneva in 1958, led to the codification of four conventions that dealt with some areas of the LOS: Convention on the Territorial Sea and the Contiguous Zone; Convention on the Continental Shelf, Convention on the High Seas, and Convention on the Fishing and Conservation of the Living Resources of the High Seas. In the view of many scholars, the four conventions adopted by UNCLOS I in Geneva, reflected the sectoral, limited approach to international law still in vogue at that time. UNCLOS I documented much of international customary law; however, an agreement could not be reached on a number of issues. One such fundamental issue was the breadth of the TS. They were negotiated and ratified by a small number of maritime States, without participation of most of the newly emerging developing States. UNCLOS II later convened in 1960 to solve the problems left open by the first conference, yet ended without results. UNCLOS III convened from 1973 to 1982, and during a period of ten years held eleven sessions. By the end of conference, 164 States had participated, as well as 102 observers composed of International Organizations (IOs), National Liberation Movements and territories 3. The negotiation of the UNCLOS that codified the LOS can be considered one of the greatest diplomatic events of humanity and in the history of International Relations (IR), due to the different interests involved and the difficulties experienced over ten years of complex negotiations. In the end, on 30 April, 1982, the LOSC was adopted as a package, due to the close inter-relationship of many issues before the conference and the conflicting interests involved. Nonetheless, some maritime powers with an important role in the 3 Mozambique took part in the negotiations of UNCLOS III. Before its independence, Mozambique it was represented by the national liberation movement (now a Political part), FRELIMO (Front of Mozambique Liberation) as observer, and after independence by various delegations composed of official representatives of the State. 3

12 INTRODUCTION implementation of LOSC, such as the United States of America (USA) 4 are not yet party to it. With its new provisions, LOSC expanded the coastal State s resources and economic rights in a vastly expanded EEZ and Continental Shelf (CS), while also fully protecting sovereign rights in navigational freedom 5. LOSC established the maritime spaces subject to jurisdiction of coastal States 6 and principles governing the delimitation of maritime boundaries. In particular, the maritime spaces which would be most often subject to boundary delimitation between two or more States are the TS (Article 15), the EEZ (Article 74) and the CS (Article 83). There is a difference in treatment to be found between Article 15, which gives prominence to a median line, and two other Articles 74 and 83, which stress the need to reach an equitable solution. The delimitation of maritime boundaries between two or more States occurs in a situation of overlapping maritime claims between those States 7. Mozambique become a State Party of the LOSC by its approbation through the Resolution No. 21/96 of 26 November , and is covered by the provisions of LOSC. This study aims to analyze how LOSC establishes the issue of delimitation of maritime boundaries with respect to the Mozambican situation and to discuss the problems of the Mozambican maritime boundaries, their delimitation, negotiation, and options for possible conflict scenarios. This study also reflects upon the current approach 4 Within the USA in particular, the current administration favors ratification of the Convention, and there are prominent supporters for USA ratification of LOSC, including John Norton Moore & William L. Schachte Jr. The Senate Should Give Immediate Advice and Consent to the Law of the Sea Convention: Why Critics are Wrong? (2006, N/P Document). 5 Moore (2006: 4, 5). 6 All waters landward of the baseline are internal waters, over which the coastal State may exercise exclusive control, identical to the exercise on land. Directly seaward of the baseline lies the TS, over which the coastal State may exercise limited sovereignty but through which the innocent passage of foreign vessels must be allowed. Beyond the TS and extending 12 miles further seaward is the CZ over which the coastal State enjoys jurisdiction to enforce its customs, tax, and environment protection laws. The LOSC gives each coastal State the right to claim a 200 miles EEZ and 200 miles (or longer, if the physical geography so dictates) CS, See Introduction of Reisman & Gayl S. Westerman, Straight Baselines in Maritime Boundary Delimitation, 1992, New York. 7 Boundary shall be understood as the physical limits of the State s geographic, territorial and, usually, national jurisdiction. Some authors use the term border to refer to boundary, although the word is sometimes used interchangeably with boundary, expression such as border control, border posts or border crossing, all denote elements of administrative control. See: Kendall Freeman, The language of international Maritime Disputes. (Accessed 19 May 2006). 8 Published in Official Journal No. 47, 1st Serial, 6 Supplement. 4

13 INTRODUCTION to management of maritime issues and permanent maritime boundaries. The study is divided into two parts: The First Part entitled Delimitation of Mozambique Maritime Boundaries and the Extended Continental Shelf examines the concern of delimitation of Mozambique maritime boundaries including the extended CS. It presents strategies or options for successful maritime boundaries delimitation and evaluates the importance of delimitation of maritime boundaries for Mozambique. This part also examines the management of (permanent) maritime boundaries The Second Part entitled Management of Maritime Issues in Mozambique reviews and analyzes the current approach of Mozambique ocean management framework, and identifies options that Mozambique could use to manage and administer her maritime issues. The second part has merely a functional objective. It seeks to provide a brief introductory account of aspects relevant to the understanding of the approach for marine management in Mozambique, focusing on the provisions of LOSC which pertain to fisheries, environmental and coastal management. Lastly, the conclusion provides recommendations for the Government. 5

14 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES The world political map is undergoing a process of rapid change as former States disintegrate and new States emerge. At sea, boundary delimitation between coastal States is continuing unabated. These changes could pose a threat to a world peace if they are not wisely negotiated and careful managed. (Gerald H. Blake in Maritime Boundaries: World Boundary Volume 5) PART I: DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES AND THE EXTENDED CONTINENTAL SHELF 1. Mozambique Maritime Geographic Context The Republic of Mozambique (RM) is located on the coast of Southeastern Africa, between the parallels of 10º 27 and 26º 52 South Latitude and meridians of 40º 51 and 30º 31 East Longitude. The RM covers a total area of square kilometers (km²) including km² of inland waters (lakes and rivers). Mozambique is bordered to the north by Tanzania, to the west by Malawi, Zambia and Zimbabwe and to the South by South Africa and Swaziland. To the east, Mozambique is bounded by the Mozambique Channel in the India Ocean 9. In the Mozambique Channel, RM has various neighbors, namely: the Comoros Archipelago (composed of the islands of Grande Comore, Mahéli and Anjouan) and the French possessions under dispute ( Mayotte Island, Glorioso Islands 10, Juan de Nova Island 11, Europa Island 12 and Bassas da India 13 ), see Map The Mozambique Channel is about 900 nm (nautical miles) in length running generally north-south, with a narrowest width of 320 nm. There are islands spaced regularly throughout its length. In the north mouth are the Comoros, the Aldabra Group of Seychelles, and the French Territory of Mayotte and Glorioso Islands. At the southern mouth lie Bassas da India and Europa Island ; Prescott, J. R. V. (1986: 1975); The Maritime Political Boundaries of the World, Methuen, London & New York. 10 Glorioso Islands are located at 11º 30 S and 47º 20 E, in the northern Mozambique Channel about 160 km northwest of Madagascar. 11 Juan de Nova Island is located at 17º 03 S and 42º 45 E, in the narrowest part of the Mozambique Channel and about one third of the way between Mozambique and Madagascar. 12 Europa Island is located at 22º 20 S and 40º 22 E, about a third of the way from southern Madagascar to Southern of Mozambique. 13 Bassas da India is located at 21º 27 S and 39º 45 E, in the Southern Mozambique Channel, about half way between Mozambique and Madagascar. 14 See also Atlas Geográfico de Moçambique (1986: 31), Vol I. Maputo: INDE. 6

15 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES Map 1 Geographic location of Mozambique and Islands under dispute in Mozambique Channel (not to scale) Source: Prepared by the Author and Drawn by Spatial Logic, Legend: The Land Boundaries of Mozambique Island with sovereignty in dispute in Mozambique Channel Mozambique has a coastline of approximately km, from the Rovuma River in the north to Ponta D ouro (Gold Point) in the South. The coast of Mozambique is irregular in its configuration, and is characterized by rugged inlets, islands, and archipelagos. The adjacent sea of Mozambique has significant marine resources which are important to the population of Mozambique for socio-economic reasons. For example, 7

16 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES shrimp and prawns were the State s main export until the development of the one of the biggest aluminum industries in the world: Mozambique Aluminum (MOZAL). Mozambique is a coastal State under LOSC, with a population of about 19, 888, , most of which depends upon agriculture and fisheries for its livelihood. Other significant activities related to the sea include tourism and shipping. In fact, Mozambique has three of the main ports in the Southern Africa Development Region (SADC): Maputo, Beira and Nacala ports. These ports serve not only the RM, but also the landlocked countries of Zimbabwe, Malawi, Zambia. These ports have container facilities, and are the hubs in the regional multi-nodal transport system. 2. Internal Jurisdiction and Legal Issues Related to Maritime Boundaries in Mozambique vs. Law of the Sea Convention Mozambique gained its independence in 1975, after which many sectoral institutions were created with ocean related mandates. Largely as a consequence of the previous two decades of civil war and instability, the evolution of many issues related to the sea had been ignored. Despite the civil war, which persisted beyond the end of UNCLOS III, Mozambique did not lose the opportunity to take part in the LOSC negotiations. The peace agreements of Mozambique were signed in Rome in The peace process did not represent a simple return to a situation of national reconciliation, but modified the institutional framework of the State. With specific regard to maritime boundaries, an Inter-Ministerial Commission of Sea and Boundaries 16 was created in 1997 to address not only land boundaries issues, but also to coordinate the new tasks of the modern approach of the LOS. This Commission was based in the Ministry of Foreign Affairs and Cooperation (MINEC). The mandate of this Committee was restricted due to the issues involved and other technical aspects. In the late 1990s and early 2000, the Government eventually recognized that the existing institutional structure was inadequate for the changing dynamic and challenges of sea matters, at both the national and international levels. 15 National Institute of Statistic, 2006, (Accessed 14 August 2006). 16 Created in 1997 by the Decree No. 16/97, of 1 July. 8

17 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES The Inter-Ministerial Commission of Sea and Boundaries was consequently replaced by the National Institute for Maritime and Borders Affairs (IMAF) 17. This can be considered the most significant decision made by the Chissano Administration concerning the LOS. In creating IMAF, the Government s decision was informed by the need to adapt to changes taking place in the international arena. More specifically, the need to adopt measures to establish more efficient mechanisms to protect and to preserve the environment and its resources and to improve coordination in defining national policies, strategies and actions regarding the use of the sea and the delimitation of maritime boundaries in order to maintain and strengthen existing friendly relations with neighboring States. IMAF is an organ of technical coordination and execution of the State s actions on issues related to the sea and boundaries. IMAF is an autonomous body under the umbrella of MINEC. In the domestic order of Mozambique, the adoption of LOSC brought new impetus to the ocean related matters. Before the LOSC, the State was largely guided by laws inherited in the colonial era and by customary law. According to Article (6)(2) of the new revised Republic Constitution, approved in 2004, the extension of the limit of territorial waters, the EEZ, the CZ and the rights of seabed of Mozambique, are established by law. The law referred to is Act 4/96 of 4 January 1996 approving the Act of Sea 18. Particularly, the Act of Sea establishes the maritime spaces of Mozambique, defining and specifying the requirements to be satisfied in order to perform maritime activities and navigation within the waters under Mozambique jurisdiction. This Act consists of eight chapters, each establishing the following: - Chapter I General Dispositions - Involved sectors and areas where this law shall be applied; - Chapter II Maritime Spaces - TS, EEZ and CS, calculated from the baselines in the table 19 and aspects of boundary delimitation with opposite and adjacent States; 17 Created in 2001 by the Decree No. 18/2001 of 3 July. 18 Published in the Official Journal of Republic of Mozambique. 19 See Table on the Annex I. 9

18 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES - Chapter III Water Public Domain - Water jurisdiction, including marine and internal waters; - Chapter IV Vessels - Vessels, including ownership, classification and registration, and maritime trade; - Chapter V Maritime Industry ; - Chapter VI Maritime Labor ; - Chapter VII Maritime Administration - including powers over foreign vessels; and - Chapter VIII Final Provisions. A broad analysis of this Act revels that it has some gaps in terms of new provisions of LOSC, such as the definitions of the EEZ and the provisions related to environmental issues, and the delimitation of maritime boundaries. The articles addressing maritime boundaries will be analyzed later in this study. However, in legal terms, Mozambique as a State Party of LOSC, has the sovereign right to establish its maritime spaces and/or delimit her maritime boundaries in the case of overlapping claims of maritime spaces. The IMAF is the central institution of coordination of all aspects related to delimitation, reaffirmation, and negotiation of both maritime and land boundaries. However, the final approval and ratification of such actions is attributed to the Republic Assembly (RA), according to Article 179 (1) (b) of 2004 Republic Constitution. IMAF, in its duties, chairs the Technical Council of Sea and Boundaries (TCMF) 20 and reports to the Coordination Council of Sea and Boundaries (CCMAF) 21 which is chaired by the Primer Minister of the RM. Further, for the establishment and delimitation of maritime boundaries in domestic order, IMAF is guided by the principles contained in the Act of Sea, referred to above. 20 Sea Article 13 of IMAF Statutes. 21 The Coordination Council of Sea and Boundaries is an organ of Council of Ministers of Mozambique, with its aim to coordinate multi-sectoral actions of sea and boundaries, and was established by the Presidential Decree No. 2/2001 of 3 July

19 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES Regarding existing boundary agreements, there is only one agreement with the United Republic of Tanzania (URT), concluded on 28 December, 1988 in Maputo 22. In general, this agreement describes the agreed upon-land and maritime boundaries between the two States. The maritime boundary starts from the internal waters and extends out to the EEZ. The TS was delimited by the application of the equidistance method by drawing a median straight line from point B to a point C 12 nm away and located at latitude 10º S and longitude 40 º E. For the delimitation of the EEZ, the two States used the equidistance principle by elongating the median line used for delimitation of the TS from point C to a point D 25.5 nm away and located at latitude 10º S and longitude 41º E. From point D, the EEZ is delimited by application of the principle of equity, by a line running due east, along the parallel of point D. The point of termination of this line will be established through exchange of notes between the URT and RM at a future date (See Map 2). Map 2: Delimited Boundary Between Mozambique and Tanzania Source: Prepared by the Author and Drawn by Spatial Logic, This agreement was ratified by the Peoples Assembly through Resolution No. 11/89 18 September 1989, Published in Official Journal No. 37, 1st Serial, 6 Supplement. 11

20 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES However, the delimitation of RM s boundary with Tanzania is not complete. To be concluded, the involvement of the Comoros is required in order to establish the tri-point between the three countries (Mozambique, Madagascar and Comoros Islands). It appears that an attempt to establish the tri-point failed due to a disagreement of Comoros with the Comoros on the use of the equity principle by Mozambique and Tanzania which was used to delimit their EEZ The Establishment of Baselines The first step in determining the outer limits of any area of jurisdiction adjacent to a coastline is the establishment of a starting point from which all measurements will be made: the baselines 23. The convention specifies the rules for drawing baselines. These rules distinguish between normal baselines (following the low water line along the coast) and straight baselines (which can be employed only in specified geographical situations) 24. Article 5 of LOSC deals with the normal baseline, stating that the normal baseline for the measurement of maritime spaces is the low water line along the coast 25, which is marked on large-scale charts officially recognized by the coastal State. It appears that the provisions of this Article are identical to those made by Article 3 of the 1958 Geneva Convention on TS and CZ. The low water line is an identifiable feature shown on a nautical chart at medium or large scales. The depiction of the low water line as a distinct feature depends largely upon the nature and seaward extend of the inter-tidal area. Where 23 Riesman, W. Michael & Gayl S. Westerman (1992: XIV); Straight Baselines in Maritime Boundary Delimitation, St. Martin s Press, New York. These authors consider the question of baselines as an issue which has not been clarified and which lies at the heart of most current maritime boundary disputes. 24 Roach, J. Ashley (1999: 1), Drawing Straight Baselines: The Need for a Universal Norm, International Studies Association; 1999 Annual Meeting Omni Shoreham Hotel, 2500 Calvert St. NW, Washington DC 20008, February 17, The low water line can be defined as the intersection of the plane of low water with the shore. The line along the coast, or beach, to which the sea recedes at low water (Office for Ocean Affairs and the Law of the Sea, UN: 1989: 58). 12

21 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES the tidal range is appreciable, the inter-tidal zone may extend for a considerable distance to the limit of the low water line and be exposed at low water 26. The other rule of establishment the baselines is the straight baselines system. First legitimized by the International Court of Justice (ICJ), in 1951 through the Anglo/Norwegian Fisheries Case 27, it was codified and developed in the 1958 Conventions 28. The straight baseline method has been adopted by many coastal States, often incorrectly 29. Article 7 of the LOSC allows States to draw straight baselines in the following situations: 1. In the locations where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breath of territory sea is measured. 2. Where because of the presence of delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low water line and, notwithstanding subsequent regression of the low water line, the straight baselines shall remain effective until changed by the coastal State in accordance with LOSC. 3. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. 4. Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations, which are permanently above sea level, have been built on them, except in instances where the drawing of baselines to and from such elevations has received general international recognition. 5. Where the method of straight baselines is applicable under paragraph 1 of Article 7, account may be taken, in determining particular baselines, of economic interests peculiar to a region concerned, be the reality and the importance of which are clearly evidenced by long usage. 26 Kapoor & Adam J. Kerr (1986: 30). 27 Anglo-Norwegian Fisheries case (UK vs. Norway ), 1951, ICJ, 116, Reisman & Gayl S. Westerman (1994: XV). 28 Territorial Sea Convention Article 4; LOSC Article Reisman & Gayl S. Westerman (1994: XV). 13

22 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES 6. The system of straight baselines may not be applied by the State in such a manner as to cut off the territorial sea of another State from the HS or an EEZ. Thus, normally, baselines may consist either of the low water line along the mainland and island coasts (the normal baseline ), or of straight baselines (including across the mouth of rivers, delta and bay closing lines ). For the use of straight baselines, the first assumption prescribed is the deeply indented nature of coastline and the presence of a fringe of islands 30 along the coast. This would indicate an intention to limit the use of straight baselines to only those coasts that are highly irregular in their configuration, and where the nature and geographic extent of the indentations make it impractical to use normal low water baselines 31. The determination of baselines will immediately fix the outer edge of the State s internal waters, and then permit the mechanical determination of the outer edge of the TS, the CZ, the EEZ and the CS, since each is measured, at their respective uniform distance, seawards from the baselines. In the case of archipelagic States, such as the Comoros, the establishment of baselines must follow the rules contained in Article 47 of LOSC entitled: archipelagic baselines. It has been observed that baseline claims can extend maritime jurisdiction significantly seaward in a manner that not prejudices navigation, overflight and other interests 32. Further, objective application of baseline rules contained in LOSC can help prevent excessive claims in the future and encourage Governments to revise existing claims to conform to the relevant universally agreed-upon criteria. 30 The phrase deeply indented and cut into traveled intact from the 1951 Anglo-Norwegian Fisheries case Judgment to LOSC via the 1958 Convention and the phrase a fringe of islands along the coast in its immediate vicinity appears to be a widening of the phrase used in its Judgment: or where it (a coast) is bordered by an archipelago such as the skjaergaard. See Division for Ocean Affairs and the Law of the Sea, UN (1989: 21); Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea, Office for Ocean Affairs and the Law of the Sea, New York. According to Kapoor & Adam J. Kerr (1986 : 34), the term fridge of islands implies a number of lying islands, islets, rocks, etc. spread out over some distance so as to form a continuous fringe along the coast. The mere presence of a few isolated islands would not, in this context, constitute a sufficiently solid fringe. 31 Kapoor & Adam J. Kerr (1986: 34). 32 Roach, J. Ashley (1999); Drawing Straight Baselines: The Need for a Universal Norm, International Studies Association; 1999 Annual Meeting Omni Shoreham Hotel, 2500 Calvert St. NW, Washington DC 20008, February 17,

23 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES The Mozambique baselines have already been established. In practical terms, the closing lines and the straight baselines which supplement the normal base line of Mozambique are defined according to Map 3. The points specified in the Map 3 create five straight baselines systems, which, in two cases, connect offshore islands and reefs with the mainland and, in three cases, close bay-like coastal indentations. The table in Annex I illustrates the base points, which together constitute the baselines of the RM. The straight baseline system of Mozambique consists of five sectors, three of which are restricted to bay closings. The longest segment measures approximately 60.4 nm in length, while the shortest is 2.8 nm. The average segment length is approximately 19.7 n m, and only two of the segments deviate from the general direction of the coast. It is noteworthy that, on 22 August 1966, the Government of Portugal published the Law No on the TS of the State and the ultramarine provinces at the time, namely: Mozambique, Angola, and Guiné. This law permitted the construction of bay-closing lines or straight baselines for Portugal and its ultramarine provinces. On 13 June 1967, Decree No was issued by the Ministry of the Navy establishing the baselines of Mozambique, Angola and Guiné, from which the breath of TS was measured. After the independence of Mozambique, the Government did not update or revise these baselines, and they were incorporated into the Act of Sea. The Decree n , did not specify the method/s used for their establishment, and these baselines were drawn before LOSC. Thus, it is currently not know exactly which method/s were used in their establishment. As regards straight baselines, the Mozambique practice is derived from Portuguese Law, for this reason, the baselines might be revised or updated to be in concordance with LOSC. In Mozambique there is no record of any substantive technical and hydrographic survey report on the State s maritime zones. However, a significant amount of data exists, some of which is in Portugal. The drawback with the existing data is that it needs to be interpreted into a useful format after which a determination can be made as to the extend to which this data will be useful. 15

24 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES Map 3: Baselines of Republic of Mozambique. Source: U.S. Department of State, International Boundary Study, Limits in the Seas,

25 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES It is probable that the baselines of neighboring States have similar concerns. For example: the baselines of Madagascar which are presently in use were drawn in , and some authors consider Madagascar in the category of State claims in violation of Article 7 of LOSC 34. However, in delimitation of its maritime boundary, Mozambique ideally should examine the baselines of other States which are in conformity of LOSC. According to Kapoor & Admam J. Kerr 35 it frequently happens that in case of opposite or adjacent States, one State has modern geodetic data available from recent surveys, whereas the other State has a series of charts, perhaps compiled from sketch surveys. In these circumstances, it would be greatly advantageous to complete a survey on the coastal area concerned before embarking upon a boundary delimitation, so as to ensure that neither State could gain an advantage in negotiations as a consequence of better geodetic data. Considering the configuration of the Mozambique coast, a combination of methods for determining baselines will be necessary, and Article 14 of LOSC states that the coastal State may determine baselines in turn by any of the methods provided for in the foregoing articles to suit different conditions. In other words, making use of the methods for drawing normal baselines, straight baselines, or closing lines as appropriate to the configuration of the coastline. For Mozambique, the choice of a combination of methods shall be justified in the fact that, in the north and south of the State, the coast is not regular thus requiring straight baselines. In the central zone, where the coast is regular, normal baselines must be applied. Where the baselines of opposite States are less than 400 nm apart, as is the case of Mozambique with opposite States, EEZ and CS claims may overlap, and it will be necessary to delimit maritime boundaries in order to provide certainty of jurisdiction. Under Articles 74 and 83 of LOSC, the delimitation process shall be affected by 33 The Government of the Republic of Madagascar decreed on 23 February, 1963 that the TS of the State would be 11 nm measured from the straight baselines for most of the coast. The decree, published in the Official Journal, No. 277, 9 March 1963, defined the straight baselines which are still in use. 34 For more details see Reisman, W. Michael & Gayl S. Westerman (1992); Straight Baselines in Maritime Boundary Delimitation, St. Martin s Press, New York. 35 Kapoor & Admam J. Kerr (1986 : 13). 17

26 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES agreement on the basis of international law as referred to in Article 38 of the Statutes of the International Court of Justice (ICJ) in order to achieve an equitable solution Charts and Geographical Coordinates One of the issues which is necessary to tackle a priori is the question of charts and geographical coordinates, due to the fact that the scale of the chart on which the coastal State depicts its baselines, or derived limits, should be adequate for the user to determine the limits and the final promulgation of the boundaries. In LOSC, there are three Articles concerning the promulgation of details of the TS, EEZ and CS boundaries: Article, 16, 75 and 84. Although worded differently, they all have the same objective: the use of charts or the requirement to provide a list of geographical coordinates as a definitive reference. They specifically require that where the boundaries are defined by geographical coordinates the geodetic datum should be specified 36. In delimitation between two or more States, it is necessary to know the relationship between the geodetic datum of the States concerned, because a boundary derived from the co-ordinates of base-points of two States using differing geodetic datum will not be on either of the datum or on any other definable datum. LOSC stipulates that the coastal State shall give due publicity to such charts, or lists of geographical coordinates, and shall deposit a copy of each such chart, or list, with the Secretary General of the UN. The view has been expressed that the term chart used throughout the LOSC means a nautical chart intended for use by mariners as an aid to navigation, since only nautical charts show all the relevant features such as low water lines, low tide elevations, drying 36 Geodetic datum defines the basis of a co-ordinate system. A local or geodetic datum is normally referred to an origin whose coordinates are defined. The datum is associated with a specific reference ellipsoid which best fits the surface (geoid) of the area of interest. A global geodetic datum is now related to the center of the earth s mass, and its associated spheroid is the best fit to the known size and the whole earth. The geodetic datum is also known as the horizontal datum or horizontal reference datum. The position of a point common to two different surveys executed on different geodetic datum will be assigned two different sets of geographical co-ordinates. It is important, therefore, to know what geodetic datum has been used when a position is defined. Division for Ocean Affairs and the Law of the Sea, UN (1989: 55); Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea, Office for Ocean Affairs and the Law of the Sea, New York. 18

27 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES reefs, etc 37. The scale to be chosen for such charts will depend on the scales of the land maps available and complexity of low water line. In general it is recommended that the scale should be within the range 1:50,000 to 1:200, Most of Mozambique s nautical charts were inherited from the colonial era, and a process of resurveying is taking place in order to update the charts 39. As perniciously stated geodetic datum is the first technical requirement of any maritime boundary delimitation. A set of coordinates which does not reference any geodetic datum invites an uncertainty for the boundary line that can be hundreds of meters. A second issue at hand concerns the use of charts. Nautical charts should not be used for defining the course of the line; they should simply have an illustrative purpose. Even if the boundary is short, and large-scale charts are used, the uncertainty associated with such a practice would still be inadequate for the positioning accuracy of the boundary 40. A third aspect relate to the use of charts lies in precision of the geographic coordinates utilized to describe the boundary. Coordinates given to one decimal figure of second of arc. i.e., 3 meters or 10 feet, seems adequate for any conceivable purposes at sea. One second of arc, an accuracy of some 30 meters, would in effect probably be enough in most cases. A fourth point has to do with the straight lines joining the turning points of the boundary line. They can be defined as either geodesics or loxodromes; and it should be explicitly stated which type of line is being used. For very short segments however, it is virtually irrelevant whether one or the other is used Law of the Sea. Baselines: An examination of the relevant Provisions of the United Nations Conventions on the Law of the Sea, p.1, United Nations, N.Y.1989, Commonwealth Secretariat (1993: 123). 38 See: Division for Ocean Affairs and the Law of the Sea, UN (1989: 2); Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea, Office for Ocean Affairs and the Law of the Sea, New York. 39 National Institute of Hydrography and Navigation (INAHINA) is in process of updating hydrographic charts (Maputo and Quelimane charts have been done), but is experiencing problems with quality control and its capacity for mapping and chartering is limited. 40 Assume the case of a TS boundary between adjacent States, i.e., a boundary that is 12 nm long. In the best case scenario, the description of the boundary line would require a chart with a scale of 1:25,000 (in most cases it would have to be a scale smaller than that; e.g., 1:30,000, 1:50,000). In this case, the uncertainty of the line would be roughly 25 meters. 41 Atunes, Nuno S. Marques (2005 : 3385). 19

28 DELIMITATION OF THE MOZAMBIQUE MARITIME BOUNDARIES 3. Delimitation of Maritime Boundaries of the Exclusive Economic Zone and Continental Shelf: Law of the Sea Convention vs. Act of Sea (4/96) 3.1. Legal Principles Before focusing specifically on the boundary delimitation process, it is necessary to revisit the legal principles of maritime boundary delimitation established in Mozambique s domestic law by the Act of Sea and on the international level by LOSC. It is recognized that the competence of the State to claim maritime zones beyond the TS derives from its sovereignty over the territory 42. In this case, the sovereignty can be understood as a prerogative of the State to exercise exclusive jurisdiction over territory, and it is the geographical limit of the right to exercise sovereignty over part of territory which lies in a boundary delimitation. The Mozambique legal framework for maritime zone establishment and maritime boundary delimitation is provided by the Act of Sea, cited above. This Act established 12 nm for the TS (Article 5), 24 nm for the CZ (Article 8), 200 nm for the EEZ (Article 9) and 200 nm for the CS (Article 13). It specified the principles for Mozambique to follow in delimitation and establishment of maritime boundary agreements. Article 5 of Act of Sea addresses delimitation of the TS: In the case where the Mozambican coast is adjacent to the coast of another State, unless otherwise agreed between Mozambique and that other State, the TS will be limited by the median line every point of which is equidistant from the nearest points on the baselines from which the breath of the TS of each State is measured 43. This Article reiterates the median line principle for delimitation of the TS as it appears in LOSC, except that the Act of Sea article does not consider delimitation of TS with opposite coastal States, but its seems that the Article only addresses Mozambique and opposite coastal States. 42 Churchill & Geir Ulfsyein (1992 : 38). 43 Original language Nos casos em que a costa moçambicana esteja adjacente à costa do outro Estado, salvo acordo celebrado entre a República de Moçambique e esse Estado, o mar territorial será limitatdo pela linha mediana cujo os pontos sejam equidistantes dos pontos mais proximos das linhas de base a partir das quais é medida a largura do mar territorial de cada um dos Estados.(Article 5 of Act of Sea). 20